Exhibit 99(c)(1)
CONFIDENTIALITY AND STANDSTILL AGREEMENT
This agreement will confirm our possible interest in preliminary
discussions ("DISCUSSIONS") which might lead to some form of negotiated
transaction between the parties (the "TRANSACTION"). During such Discussions,
we, which term (as well as the terms "us" and "party" when referring to Lockheed
Xxxxxx Corporation shall include Lockheed Xxxxxx Corporation and its affiliates
and their directors, officers, employees and Representatives (as hereinafter
defined) and you, which term (as well as the term "party" when referring to
Loral Corporation shall include Loral Corporation and its affiliates and their
directors, officers, employees and Representatives, may determine that it is
necessary and appropriate to exchange certain information relating to us or you
respectively. Any such information (whether written or oral) furnished (whether
before or after the date hereof) by you to us or by us to you, including your or
our respective financial advisors, attorneys, accountants or agents
(collectively, "REPRESENTATIVES") and all analyses, compilations, forecasts,
studies or other documents prepared by you or by us in connection with your or
our review of, or interest in, the Discussions or the Transactions which contain
or reflect any such information is hereinafter referred to as the "INFORMATION."
The term Information will not include information which (i) is or becomes
publicly available other than as a result of a disclosure by the receiving party
or (ii) is or becomes available to the receiving party on a nonconfidential
basis from a source (other than that party) which, to the best of the receiving
party's knowledge, is not prohibited from disclosing such information to it by a
legal, contractual or fiduciary obligation, or (iii) is independently developed
by the receiving party without reference to the Information.
Accordingly, it is hereby agreed that:
1. Each of the parties (i) will keep the Information confidential and will not
(except as required by applicable law, regulation or legal process, and
only after compliance with paragraph 3 below), without the prior written
consent to the party which furnished the Information, disclose the
Information in any manner whatsoever, and (ii) will not use the Information
other than in connection with the Transaction. Information may be revealed
to a receiving party's Representatives only if such Representatives (a)
need to know the Information for the purpose of evaluating, or advising the
receiving party with respect to the Transaction, (b) are informed of the
confidential nature of the Information and (c) agree to act in accordance
with the terms of this agreement.
2. Each of the parties will not (except as required by applicable law,
regulation or legal process, and only after compliance with paragraph 3
below), without the other party's prior written consent, disclose to any
person the fact that the Information exists or has been made available,
that either party is considering the Transaction, or that discussions or
negotiations are taking or have taken place concerning the Transactions or
any term, condition or other fact relating to any such Transaction or such
discussions or negotiations, including, without limitation, the status
thereof.
3. In the event that we are requested pursuant to, or required by, applicable
law, regulation or legal process to disclose any of the Information, we
will notify you promptly so that you may seek a protective order or other
appropriate remedy or, in your sole discretion, waive compliance with the
terms of this agreement. Similarly, in the event that you are requested
pursuant to, or required by, applicable law, regulation or legal process to
disclose any of the Information provided by us, you will notify us promptly
so that we may seek a protective order or other appropriate remedy or in
our sole discretion, waive compliance with the terms of this agreement. In
the event that no such protective order or other remedy is obtained, that
we or you waive compliance with the terms of this agreement, or that
disclosure is legally required, the disclosing party will furnish only that
portion of the information which it is advised by counsel is legally
required and will exercise reasonable efforts to obtain reliable assurance
that confidential treatment will be accorded the Information.
4. If either party determines to cease discussions and/or not to proceed with
a Transaction, it will promptly inform the other party of that decision.
In that case, each party at its sole election will either (i) promptly
destroy all copies of the written Information in its possession and confirm
such destruction to the other party in writing, or (ii) promptly deliver to
the other party at the returning party's expense all copies of the written
Information in its possession.
5. The parties acknowledge that neither party or any of its controlling
persons within the meaning of Section 20 of the Securities Exchange Act of
1934, as amended, makes any express or implied representation or warranty
as to the accuracy or completeness of the Information furnished to the
other party, and the parties agree that no such person will have any
liability relating to the Information or for any errors therein or
omissions therefrom. The parties further agree that they are not entitled
to rely on the accuracy or completeness of the Information and that they
will be entitled to rely solely on such representations and warranties as
may be included in any definitive agreement with respect to a Transaction,
subject to such limitation and restrictions as may be contained therein.
6. The parties acknowledge that they are aware of the restrictions imposed by
the United States securities laws on the purchase or sale of securities by
any person who has received material, non-public information from the
issuer of such securities and on the communication of such information to
any other person when it is reasonably foreseeable that such other person
is likely to purchase or sell such securities in reliance upon such
information.
7. For a period of three years from the date of this agreement, neither you
nor we nor any of either of our controlled subsidiaries, will, unless
specifically invited by the other party ("party" in this paragraph 7 and in
paragraph 8 meaning either (i) Lockheed Xxxxxx Corporation or (ii) Loral
Corporation and any existing or newly organized subsidiary of Loral
Corporation the stock of which is distributed to the shareholders of Loral
Corporation, as the case may be) or its Board of Directors: (i) acquire,
offer to
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acquire, or agree to acquire, directly or indirectly, by purchase or
otherwise, any voting securities, or direct or indirect rights to acquire
any voting securities of the other party, or any assets of the other party
or any subsidiary or division thereof or of any such successor or
controlling person; (ii) make, or in any way participate in, directly or
indirectly, any "solicitation" of "proxies" (as such terms are used in the
rules of the Securities Exchange Commission) to vote, or seek to advise or
influence any person or entity with respect to the voting of, any voting
securities of the other party; (iii) make any public announcement with
respect to, or submit a proposal for, or offer of (with or without
conditions) any extraordinary transactions involving the other party or its
securities or assets; (iv) form, join or in any way participate in a
"group" (as defined in Section 13 (d) (3) of the Securities Exchange Act of
1934, as amended) in connection with any of the foregoing. The parties
agree that for the period specified above, neither will publicly request
the other (its officers, directors, employees and agents) or publicly
disclose any request, directly or indirectly, to waive any provisions of
this paragraph.
8. Each of the parties hereto agrees that, for a period of two years from the
date of this agreement, it and its controlled subsidiaries will not,
directly or indirectly, solicit for employment any employee of the other
party or any of its subsidiaries who became known to it as a result of the
Discussions or its consideration of a Transaction or any other person with
whom a party has direct contact in the course of negotiating any
Transaction, provided, however, that any such solicitation shall not be
deemed a breach of this agreement if (i) the personnel who perform such
solicitation have no access to or knowledge of any Information or this
agreement and (ii) none of the soliciting party's personnel who have access
to the Information have actual advance knowledge of such solicitation;
provided, further that nothing contained in this paragraph 8 shall be
deemed to limit in any manner our ability to offer employment to your
employees in the event of the consummation of a Transaction between us.
The term "solicit for employment" shall not be deemed to include general
solicitations of employment not specifically directed towards employees of
a party or any of its subsidiaries.
9. Each of the signatories acknowledge that remedies at law may be inadequate
to protect it against any actual or threatened breach of this agreement
and, without prejudice to any other rights and remedies otherwise available
to them, the signatories agree that each of them shall be entitled to
equitable relief, including injunction. In the event of litigation
relating to this agreement, if a court of competent jurisdiction determines
in a final, nonappealable order that this agreement has been breached then
the breaching signatory shall reimburse the nonbreaching signatory for
costs and expenses (including, without limitation, legal fees and expenses)
incurred in connection with all such litigation.
10. No failure or delay by either signatory in exercising any right, power or
privilege hereunder will operate as a waiver thereof, nor will any single
or partial exercise thereof preclude any other or further exercise thereof
or the exercise of any right, power or privilege hereunder.
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11. This agreement will be governed by and construed in accordance with the
laws of the State of New York.
12. Any notice or communication hereunder shall be in writing and shall be
delivered personally, telegraphed, telexed or sent by certified, registered
or express mail, postage prepaid. Any such notice shall be deemed given
when so delivered personally, telegraphed, telexed or sent by facsimile
transmissions or, if mailed, three (3) business days after the date of
deposit in the United States mail, by certified mail return receipt
requested as follows:
(i) If to us, to:
Lockheed Xxxxxx Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
Attention: General Counsel
with a copy to:
O'Melveny & Xxxxx
000 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxxx
and to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx Xxxxx Xxxxxx
(ii) If to you, to:
Loral Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
Attention: Xxxxxxx X. Xxxxxxx
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with a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx
000 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxx, Esq.
13. This agreement contains the entire agreement between the signatories
concerning the confidentiality of the Information and other matters covered
hereby, and no modifications of this agreement or waiver of the terms and
conditions hereof will be binding, unless approved in writing by each of
the signatories.
Executed this 4th day of December, 1995.
LOCKHEED XXXXXX CORPORATION LORAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxx, Xx. By: /s/ Xxxxxxx X. Xxxxxxx
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Its: Vice President and Its: Senior Vice President
General Counsel and Secretary
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